Citation NR: 9734229
Decision Date: 10/08/97 Archive Date: 10/16/97
DOCKET NO. 96-40 696 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease at L4-L5.
2. Entitlement to service connection for dysthymic disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1985 to January
1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas. That rating decision denied
service connection for dysthymic disorder and for residuals
of lumbar spine injury.
The issue of entitlement to service connection for dysthymic
disorder will be discussed in the REMAND portion of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO committed error
in denying his claim for service connection for residuals of
lumbar spine injury. Specifically, he alleges that he
injured his back “loading nuclear chemical biological
equipment by himself into a military vehicle” while stationed
in Germany. He contends that the resulting back injury was
further aggravated in the performance of his duties as a tank
turret mechanic.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the evidence supports service connection for degenerative
disc disease at L4-L5.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran’s service medical records show that he
injured his back lifting heavy equipment in September 1986.
Subsequent service medical records reveal multiple treatments
for recurrent back pain. A July 1987 X ray examination
report of his lumbar spine noted a narrowed disc space at L4-
L5.
3. Post service medical records reveal treatment for low
back pain in March 1990, July 1991 and May 1993 through
October 1993. The report of a magnetic imaging resonance
examination, dated October 1993, revealed a diagnosis of
degenerative disc narrowing and disc bulging at L4-L5.
CONCLUSION OF LAW
Degenerative disc disease at L4-L5 was incurred in active
military service. 38 U.S.C.A. §§ 101(16), 1131 (West 1991);
38 C.F.R. § 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Consideration
Service connection may be established for a current
disability in several ways, including on a "direct" basis, on
the basis of "aggravation," and on a "secondary" basis. 38
U.S.C.A. §§ 101(16), 1131, 1153 (West 1991); 38 C.F.R. §§
3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.310(a) (1996).
Direct service connection may be established for a disability
resulting from diseases or injuries which are clearly present
in service or for a disease diagnosed after discharge from
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(a), (b), (d) (1996).
Establishing direct service connection for a disability which
has not been clearly shown in service requires the existence
of a current disability and a relationship or connection
between that disability and a disease contracted or an injury
sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38
C.F.R. § 3.303(d) (1996); Cuevas v. Principi, 3 Vet.App. 542,
548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
“chronic”. When the disease identity is established there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1996).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
In this case, the veteran contends that he injured his back
during active duty service, thereby warranting service
connection for a back disorder. The determinative issues
presented by this claim are: (1) whether the veteran incurred
a back injury during service; (2) whether he has any current
back disorder; and, if so, (3) whether this current
disability is etiologically related to active military
service. The Board concludes that medical evidence is needed
to lend plausible support for issues (2) and (3) above
presented by this case because they involve questions of
medical fact requiring medical knowledge or training for
their resolution. Caluza, 7 Vet. App. at 506; see also Layno
v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski,
2 Vet. App. 492, 494-95 (1992).
II. Factual Background
The RO has retrieved the veteran’s service medical records
and they appear to be complete. His enlistment examination,
dated November 1984, noted that his spine, upper extremities
and lower extremities were normal. The veteran’s medical
history, taken at that time, indicated that he had not
previously experienced recurrent back pain. A September 1986
treatment report noted the veteran’s complaints of low back
pain for the past two weeks. The report indicated that he
injured his back while lifting heavy equipment. It also
noted an assessment of low back pain with radiation down the
left leg. The following month, October 1986, the veteran was
again seen with complaints of low back pain. A July 1987
treatment report noted the veteran’s complaints of back and
neck pain for the past two years. The report indicated that
his inservice duties required him to do a lot of heavy
lifting. X ray examination of his lumbar spine revealed a
reduced disc space at L4-L5 and a possible herniated nucleus
pulposus. The report concluded with an assessment mechanical
low back pain. In August 1987, the veteran was seen with
complaints of pain in the cervical region for the past two
days. The treatment report noted an assessment of cervical
strain. In October 1987, the veteran requested observation
for profile due to continued lower back pain during physical
training. The examination report, dated October 1987, noted
an assessment of lumbar back strain with spasm. The
veteran’s discharge examination was conducted in November
1987. The report of his discharge examination noted that he
had had chronic lower back pain for which he was treated
multiple times.
In March 1990, the veteran was treated for complaints of
lower back and leg pain by the Family Chiropractic Center in
El Dorado, Arkansas. The treatment report noted the
veteran’s history of back pain symptoms starting when he was
injured in the service. The report also noted a subluxation
at L4-L5.
In July 1991, the veteran was seen by a private physician.
The report of this examination noted his complaints of back
pain. X ray examination of his spine revealed “6th [left]
vertebra - lowered pelvis on right.” The report recommended
that he wear a lumbar support belt while working.
Medical treatment reports, dated May 1993 through October
1993, were submitted from the Haley Chiropractic Life Center
in Little Rock, Arkansas. A patient questionnaire, dated May
1993, indicated that the veteran injured his low back and
neck in an automobile accident in May 1993. Subsequent
treatment reports noted the veteran’s complaints of lower
back discomfort that radiates down his left leg. A magnetic
imaging resonance (MRI) examination of the lumbar spine,
dated October 1993, revealed an impression of degenerative
disc narrowing and disc bulging at L4-L5, with no evidence of
nerve root impinging or focal disc herniation. The report
also indicated that at L5-S1 there was a small left
paracentral disc protrusion of questionable clinical
significance.
Medical treatment reports, dated May 1995 to August 1995,
were submitted by the VA Medical Center in Little Rock,
Arkansas. A hospitalization report, dated May 1995, revealed
that the veteran underwent a Liechtenstein repair of left
inguinal hernia. The report indicated that he had an
uneventful postoperative course. A June 1995 treatment
report noted the veteran’s complaints of low back pain.
In October 1995, the veteran submitted three lay statements
in support of his claim. A review of these statements, in
pertinent part, revealed that the veteran showed no signs of
back pain prior to his entry into service and has suffered
from back pain ever since his discharge therefrom. As stated
in a letter from his friend, the way “he walks and his
actions are like an old man, not someone young as he is at
age almost 35 years.”
In October 1995, a VA compensation and pension examination
was conducted. The report of this examination noted the
veteran’s narrative history of a back injury in service with
recurrent low back pain and discomfort. Physical examination
of his back revealed minimum flattening of the lumbar
lordosis. Range of motion testing of the spine revealed
forward flexion to 85 degrees, backward extension to 30
degrees, lateral flexion to 30 degrees and rotation to 30
degrees. X ray examination of his lumbosacral spine revealed
a normal study. The examination report also noted that his
gait was normal and that there was no neurologic deficit. It
concluded with a diagnosis of residuals of injury to lumbar
spine.
III. Analysis
The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented
a claim which is plausible. All relevant facts have been
properly developed and no further assistance to the veteran
is required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107(a).
Generally, veterans are presumed to have entered active
service in sound condition as to their health except for
defects noted at the time of examination for entrance into
service. 38 U.S.C.A. § 1111 (West 1991); See Bagby v.
Derwinski, 1 Vet. App. 225, 227 (1991). The law provides
that every veteran shall be taken to have been in sound
condition when examined, accepted, and enrolled for service,
except as to defects, infirmities or disorders noted at the
time of examination, acceptance and enrollment, or where
clear and unmistakable evidence demonstrates that the injury
or disease existed before acceptance and enrollment and was
not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137
(West 1991); 38 C.F.R. § 3.304(b) (1996). The presumption
only attaches where there has been an induction examination
in which the disability subsequently noted was not detected.
See Bagby, supra.
In the present case, the veteran’s entrance examination,
dated November 1984, noted that his spine, upper and lower
extremities were normal. Accordingly, the presumption of
soundness, pursuant to 38 U.S.C.A. § 1111 (West 1991),
applies to the veteran’s lumbosacral spine.
After a thorough review of the veteran’s claims file, the
Board finds that the evidence is in relative equipoise as to
the merits of the issue. Accordingly, the benefit of the
doubt in resolving the issue is to be given to the veteran.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1996).
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As
indicated above, the veteran is presumed to have entered into
active duty with a sound lumbosacral spine. In service, he
incurred an injury to his back which was noted in his service
medical records, as well as, the X ray examination report of
his lumbosacral spine, dated July 1987, showing a narrowing
of the disc space at L4-L5 and a possible herniated nucleus
pulposus. His discharge examination noted that he complained
of chronic low back pain and was treated multiple times for
this condition during his service. After his discharge from
the service, the veteran was seen by a private physician in
March 1990. As noted in this report, the veteran had
experienced recurrent back pain ever since an injury to his
back during service. A subsequent X ray examination, dated
October 1993, revealed an impression of degenerative disc
narrowing and disc bulging at L4-L5, the same area noted in
his October 1987 X ray examination performed while in
service. A subsequent treatment report, dated August 1993,
noted his complaints of pain radiating down his left leg. As
indicated in statements from the veteran’s mother and his
friends, the veteran has had continued back pain ever since
his discharge from service. Under these circumstances, the
Board finds that the veteran has shown the requisite
continuity of symptomatology after discharge required to
support his claim. 38 C.F.R. § 3.303(b) (1996).
The Board finds that the foregoing medical evidence of an
inservice back injury and the continuity of symptoms, when
considered with the lack of a diagnosis of a chronic back
disability during service, places the evidence in equipoise
with regard to the cause-and-effect relationship between the
veteran’s inservice injury, manifested by a disc narrowing at
L4-L5 and his current degenerative disc disease at L4-L5.
38 C.F.R. § 3.102 (1996). Accordingly, the Board concludes
that service connection is warranted for degenerative disc
disease at L4-L5.
ORDER
Entitlement to service connection for degenerative disc
disease, L4-L5, is granted.
REMAND
The veteran contends that the RO committed error in denying
service connection
for his dysthymic disorder. He avers that this condition was
originally incurred in or aggravated during his military
service.
A review of his service medical records reveals that the
veteran attempted suicide in August 1987, approximately four
months prior to his discharge from the service. A statement
by the veteran, dated November 1987, indicated that his
actions resulted from frustrations he incurred in performing
his inservice duties. The report of a mental status
examination, performed the day after the veteran’s suicide
attempt, indicated that there was no evidence of a major
affective or thought disorder.
Lay statements, dated October 1995, were received from the
veteran’s mother and two friends. Each of these statements
suggest that the veteran has suffered from a mental condition
ever since his discharge from the service. They also
indicate that he has been unable to work due to this mental
condition ever since his discharge from the service.
In October 1995, a VA psychiatric examination was conducted.
The report of this examination noted the veteran’s narrative
history of being depressed for quite sometime and that he had
attempted suicide while in service. A mental status
examination revealed that the veteran displayed occasional
dysfluency and some tangentiality. The report also noted
that the predominant mood of the veteran was one of
depression. A diagnosis of dysthymic disorder was given.
After a thorough review of the veteran’s claims file, the
Board concludes that an additional medical examination of the
veteran is necessary to make an informed determination in
this matter. Specifically, the Board requests that the
examining VA physician, who conducted the October 1995
psychiatric examination, provide his opinion as to
relationship, if any, between the veteran’s active duty
military service and his current diagnosis of dysthymic
disorder.
The United States Court of Veterans Appeals (Court) has held
that, when the medical evidence is inadequate, VA must
supplement the record by seeking an advisory opinion or
ordering another medical examination. Colvin v. Derwinski, 1
Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App.
213 (1992). In view of the foregoing, the Board finds that
the clarification noted above is necessary in order to allow
for an informed determination in this matter.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to his claim, the case is
REMANDED to the RO for the following development:
1. The veteran’s claims file should then
be returned to the VA examining
physician, William E. Siegel, M.D., if
available, with a request for
clarification of the findings and
diagnosis noted in the report of the
October 1995 VA Report of Psychiatric
Compensation and Pension examination.
Specifically, he should be asked to
prepare a supplemental examination report
which should express an opinion as to the
following:
a. Whether the veteran’s dysthymic
disorder more likely than not resulted
from or was aggravated by his active duty
service with the United States Army from
March 1985 through January 1988. The
service medical records should be
reviewed in this connection.
b. If the examiner feels that additional
tests are needed, they should be
conducted, and the examiner should review
the results of any additional testing
prior to completion of the supplemental
examination report.
The claims folder must be made available
and reviewed by the examiner prior to the
examination. The examiner should provide
complete rationale for all conclusions
reached.
3. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
supplemental examination report. If the
examination report does not include fully
detailed descriptions of pathology and
all test reports, special studies or
adequate responses to the specific
opinions requested, the report must be
returned for corrective action. 38
C.F.R. § 4.2 (1996) ("if the
[examination] report does not contain
sufficient detail, it is incumbent upon
the rating board to return the report as
inadequate for evaluation purposes.").
Green v. Derwinski, 1 Vet. App. 121, 124
(1991); Abernathy v. Principi, 3 Vet.
App. 461, 464 (1992); and Ardison v.
Brown, 6 Vet. App. 405, 407 (1994).
4. Subsequently, the RO should
readjudicate all of the issues on appeal.
Following completion of these actions and, if the decision
remains unfavorable, the veteran and representative should be
provided with a supplemental statement of the case and
afforded a reasonable period of time in which to respond.
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review. No action is required of the
veteran until further notice is issued.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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